Justice Department’s Resistance to State Laws Legalizing Marijuana Go Up in Smoke

The announcement is a sharp departure from the federal judgment's prior position on marijuana.

While
the federal government has no current plans to legalize marijuana, it will not
go after states that do. The U.S. Department of Justice recently issued
much-anticipated guidance stating that it will not challenge state laws
authorizing small amounts of marijuana so long as there are robust controls and
procedures in place.

In a memorandum to federal prosecutors, United States Attorneys by
Deputy Attorney General James M. Cole outlined the Justice Department's new
position. For states like Colorado and Washington that have legalized the
production, distribution and possession of marijuana, the DOJ makes it clear
that it will defer its right to challenge the laws so long as states implement
strong regulatory systems.

"These
schemes must be tough in practice, not just on paper, and include strong,
state-based enforcement efforts, backed by adequate funding," Cole explained.
State and local governments must also allocate "the necessary resources
and demonstrate the willingness to enforce their laws and regulations in a
manner that ensures they do not undermine federal enforcement priorities."

The
announcement is a sharp departure from the federal judgment's prior position on
marijuana. Since the days of Richard Nixon, marijuana has been labeled a Class I substance under the Controlled
Substances Act, which is reserved for drugs with "high potential for
abuse, no accepted medical use, and no accepted safety for use in medically
supervised treatment."

Marijuana
is still illegal under federal law, which trumps any state law to the contrary.
As confirmed by the Supreme Court in 2005, the Commerce Clause of the U.S.
Constitution authorizes the federal government to enforce the Controlled
Substances Act despite state laws legalizing various types of marijuana use. In
this case, the Justice Department has simply elected to no longer do so in
certain situations.

Following
a successful ballot initiative to legalize recreational use of marijuana in
November, Gov. John Hickenlooper expressed concern about how quickly the new
law could be implemented. "Federal law still says marijuana is an illegal drug
so don't break out the Cheetos or Goldfish too quickly," he cautioned. In the
wake of the Justice Department's recent announcement, it may actually be that time.

Donald
Scarinci is a New Jersey lawyer and managing partner of Scarinci Hollenbeck,
LLC a regional law firm with offices in New York, New Jersey and Washington, D.C.
His columns feature legal issues in the news and articles about the business
and practice of law. He also writes regularly in Politicker NJ and the
Constitutional Law Reporter.